Hermann v. Passmore

Headnote

Specific pebeobmabce.

In an action brought to compel the performance of a parol contract the complaint alleged that defendant M., wife of defendant W., had given plaintiff a mortgage to secure a debt which W. owed him; that thereafter the defendants, desiring to use the mortgaged property as collateral security to their note at a bank, requested plaintiff to discharge his mortgage, which he did, they agreeing that they would then execute a larger mortgage to the bank, which was to be used as collateral security for defendants’ note and also for plaintiff’s note of $885, indorsed by defendants, which he expected to get discounted, and that defendants should guarantee and pay Ins note for $600, the amount W. owed him, which he had discounted, that defendants did not pay the $600 note nor the §385 one, that when the latter became due they entered into an agreement that plaintiff should pay it, and defendants would deliver him a bond and mortgage for $600. He paid the note, but the bond and mortgage was not delivered. Held, that as the $385 note was given for plaintiff's sole benefit and not for any debt of defendants’, he had failed to establish a cause of action.

Appeal from a judgment of the special term of Erie county dismissing the plaintiff’s complaint, with costs.

The action was brought to compel the performance of a parol contract made by the defendants, William E. and May E. Pass-more, with the plaintiff. The complaint alleges that the defendant William E. Passmore was indebted to the plaintiff in December, 1891, in the sum of $500; that May E. Passmore, wife of William E., to secure said indebtedness, executed a mortgage to the plaintiff on her premises, and that thereafter the Pass-mores desiring to use the mortgaged property as collateral security to their note for a thousand dollars at a bank, requested thfe plaintiff to discharge the mortgage given by Mrs. Passmore, and the parties thereupon agreed that the plaintiff should release and discharge the five hundred dollar mortgage, and that the defendants would execute to,the-bank a mortgage on Mrs. Pass-more’s premises for $1,000, which was to be used at the bank as collateral security for money to be borrowed by the Passmores and also as collateral to a promissory note the plaintiff wished to give for $385, which he expected to get discounted at the bank.

And then follow allegations to the effect that the indebtedness of William E. Passmoi-e to the plaintiff having thereafter increased $100, .that it was agreed that the plaintiff would give his promissory note for $600, the payment of which the defendants Passmore would guarantee, and which was to be discounted at the Queen City Bank in Buffalo, and the plaintiff was'to assign to the bank a mortgage he owned upon real estate for the sum of $1,000 as collateral to his said note of $600; that he discharged the $500 mortgage given by Mrs. Passmore, made his own note

for the $385 which was indorsed by the Passmores and discounted by the bank, the plaintiff having the avails of the discount, and that he gave his own note for $600, which was for value received guaranteed by the Passmores, and which he pro•cured to be discounted; that the Passmores agreed to pay the .$600 note; that they failed and neglected to pay said note, and that the plaintiff was compelled to pay and take it up; that the Passmores neglected to pay the $385 note at its maturity or any part of it, and that thereupon another agreement was entered into to the effect that the plaintiff should pay and take up the $385 note; that the Passmores should, in consideration thereof, execute and deliver to the plaintiff their bond for the sum of $600, which should be secured by a mortgage for that sum executed by the defendant, May E. Passmore, on premises then owned by her; that the bond and mortgage were executed ready to be •delivered to the plaintiff, and that thereupon the plaintiff paid :and took up the$385 note, but that the Passmores refused and neglected to deliver the bond and mortgage, and that thereafter, with intent to cheat and defraud the plaintiff, Mrs. Pass-more conveyed the premises covered by the mortgage to the defendant, Ellen E. Hotaling, she giving back to Mrs. Passmore a mortgage for $800, part of the purchase price, which Mrs.Passmore fraudulently assigned to the defendant, Henry J. Humburch. The plaintiff prayed for judgment adjudging and -decreeing that the defendants Passmore deliver over to the plaintiff the bond and mortgage for $600, and that the same should become a lien upon the premises prior to the conveyance to Mrs. Hotaling and the mortgage held by Mr. Humburch.

A't the trial the plaintiff read his complaint, and thereupon admitted that the note for '$385, indorsed by the defendants Pass-more, and used at the bank as stated in the complaint, was not given for any debt or demand owing by William E. Passmore or May E. Passmore to the plaintiff. Thereupon the plaintiff’s complaint was dismissed upon the ground that it did not state a- cause ■of action. The plaintiff duly excepted.